Recently, the appointment of prosecutors by Delhi government for conducting Delhi Riot case has been stalled by the Lieutenant Governor and consequently referred the issue to the President on difference of opinion between the Lt. Governor and Delhi Government.
Background of Controversy between LG & Delhi Government
- The 69th Amendment of the Constitution in 1991 gave the National Capital of Delhi special status with its own democratically elected government and legislative assembly.
- The amendment was not just a structural addition to the Indian Constitution, but was based on the quality and fundamental principles of egalitarianism.
- Misuse of provision of Article 239AA(4): The Lt. Governor tries to frustrate the State government by using the provisions of Article 239AA(4) and declaring that there is a difference of opinion on any issue decided by the elected government and refer it to the President.
- The Supreme Court says that Article 239AA (3)(a) reserves the Parliament’s legislative power on all matters in the State List and Concurrent List but clause (4) explicitly grants to the Government of Delhi executive powers in relation to matters for which the Legislative Assembly has powers to legislate.
- The Section 44 of the Government of National Capital Territory Act of 1991shows that the President itself, in this parliamentary law, has said the LG is“required to act on the aid and advice” of Delhi’s Council of Ministers.
Key Highlights of 2018 Judgement on LG & Delhi Government
- Delhi Government to work under Article 239AA and 239AB: The exercise of establishing a democratic and representative form of government for NCT of Delhi by insertion of Articles 239AA and 239AB would turn futile if the Government of Delhi is not able to usher in policies and laws over which the Delhi Legislative Assembly has powers to legislate for the NCT of Delhi.
- Focus on Harmonious functioning between LG and Delhi Government:The apex court instructed the State government that it should remember that Delhi is a special category Union Territory and lays down the parameters to enabling the harmonious functioning of the government and the Lt. Governor.
- Clarification on Discretionary Power of Lieutenant Governor: The judgment clarified and settled many contentious issues such as the discretionary power of the LG and the extent of the executive powers of the State government.
- Lt. Governor bound to take advice from Council of Ministers on certain matters: The Supreme Court has settled the law in regard to the ‘aid and advice’ of the Council of Ministers by affirming that the Lt. Governor is bound to act on the aid and advice except in respect of ‘Land’, ‘Public Order’ and the ‘Police’.
- No Requirement of the concurrence of the LG: The Court has made it clear that there is no requirement of the concurrence of the Lt. Governor and that he has no power to overrule the decisions of the State government.
- Maintaining Cooperative Federalism: The apex court directs the Lt. Governor not to refer to the President normal administrative matters as that would disturb the concept of Constitutional governance, principles of collaborative federalism and the standards of Constitutional morality.
- Curbing the interference of union in the executive function of the state:The executive power of the Union does not extend to any of the matters which come within the jurisdiction of the Delhi Assembly.
- Parliament can legislate for Delhi on any matter in the State List and the Concurrent List but the executive power in relation to Delhi except the ‘Police’, ‘Land’ and ‘Public Orders’ vests only in the State government headed by the Chief Minister.
Concerns associated with Judgement on LG & Delhi Government
- Grey Area on use of Article 239AA(4): It did not delineate the issues in respect of which the Lt. Governor can refer a decision taken by the Council of Ministers to the President in the event of a difference of opinion between the Lt. Governor and the State government.
- The court held that the power of the Lieutenant Governor under Article 239AA(4) represents the exception and not the general rule which has to be exercised in exceptional circumstances by the Lt. Governor.
- The operationalisation of Article 239AA (4) says that in the case of a difference of opinion between the Lt. Governor and his Ministers on any matter, the Lt. Governor shall refer it to the President for decision and act according to that decision.
- Unavailability of list of matters to be referred by LG to the President: The apex Court did not specify the matters which can be referred by the Lt. Governor to the President.
- It is unambiguously clear that the executive decisions of the State government cannot be referred to the President merely because the Lt. Governor has a different personal opinion.
- Proper functioning under the laws for to remove differences: The top court wants the Lt. Governor and the Council of Ministers to use in full the mechanism provided in the Government of NCT of Delhi Act and the Transaction of Business Rules to thrash out differences.
- LG to act as a facilitator of Council of Minister: The Lt. Governor should act as a facilitator of the Council of Ministers of Delhi and should not emerge as an adversary having a hostile attitude towards the Council of Ministers of Delhi.
Source: The Hindu